Human DNA Samples Constitute “Personal Data” Under Massachusetts Fair Information Practices Act

An individual who voluntarily submitted a DNA sample to Massachusetts law enforcement agencies, which later refused to destroy or return the sample when it was no longer needed, may pursue claims for equitable relief against the agencies for invasion of privacy, breach of contract, and violation of a state statute governing personal data retention by state agencies. This was the conclusion of the Massachusetts Appeals Court in Amato v. District Attorney for the Cape and Islands District, No. 10-P-354 (Mass. App. Ct. Aug. 25, 2011).

When Christa Worthington was found murdered in her Cape Cod, Massachusetts home in 2002, plaintiff Keith Amato (like many others) voluntarily provided a DNA sample at the request of investigators. Amato allegedly did so in reliance upon a promise by a police detective that if Amato’s DNA sample did not match the crime scene evidence, his sample and related records would be destroyed and would not become part of any state or federal database. Subsequently, Christopher McCowen, another man who consented to provide a voluntary DNA sample, was convicted of the murder.

After McCowen’s trial, Amato contacted the state attorney general and the acting director of the state crime lab, seeking confirmation that his DNA sample and all accompanying records had been destroyed. The crime lab eventually responded, stating that it retained custody of the sample, that it would not include the sample in either of a Massachusetts database or an FBI  database, but that it could not release or destroy the DNA sample or the associated records without the district attorney’s authorization. Amato wrote to the district attorney, requesting that he authorize destruction of the sample. He also wrote to the state Undersecretary of Forensic Sciences of the Executive Office of Public Safety and Security (“EOPSS”), requesting that the EOPSS adopt regulations regarding treatment and eventual destruction of voluntarily provided DNA samples. According to Amato, neither the undersecretary nor the district attorney responded to Amato’s requests.

Amato filed a putative class action against the district attorney, the crime lab, the EOPSS, and the undersecretary. He alleged that the defendants’ retention of his DNA sample and associated documents violated the Massachusetts Fair Information Practices Act (“FIPA”), constituted a violation of his privacy rights under a Massachusetts statute, and amounted to a breach of contract. The trial court dismissed Amato’s complaint for failure to state claims upon which relief may be granted. Amato appealed.

On appeal, the Massachusetts Appeals Court reversed. Reinstating Amato’s FIPA claim, the court observed that that statute provides, in relevant part, that government agencies shall “not collect or maintain more personal data than are reasonably necessary for the performance of [their] statutory functions.” Mass. G.L. c. 66A, § 2(l). Any agency “which violates … any of the provisions of [Mass. G.L. c. 66A] shall be subject to an action for injunction, declaratory judgment, or mandamus.” A “data subject”–defined as “an individual to whom personal data refers”–affected by a violation of the FIPA may bring a civil action to enforce the statute. The court found that the allegations of Amato’s complaint “plausibly suggest[ed] that the defendants have maintained more personal data than reasonably necessary to carry out their statutory functions,” and thus violated the FIPA. The court rejected the defendants’ argument that the FIPA addresses only the collection of data and not its unreasonable maintenance, and thus does not require the destruction or return of unreasonably retained data. The court reasoned that—

“Maintain” means, as relevant here, “to continue (something)” or “[t]o continue in possession of (property, etc.).” Black’s Law Dictionary 1039 (9th ed.2009). A statutory requirement that an agency cannot “maintain more personal data than are reasonably necessary” therefore demands that the agency not continue in possession of personal data when doing so is no longer reasonably necessary. The statute therefore permits Amato to seek the remedy of return or destruction of his allegedly unreasonably-maintained DNA profile and associated records.

Amato’s invasion of privacy claim was based upon Mass. G.L. c. 214, § 1B, which provides that, “A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.” The court concluded that the trial court erred in dismissing Amato’s Mass. G.L. c. 214, § 1B claim. The court wrote–

DNA information is highly sensitive. Citizens have a reasonable expectation of privacy in such information. See Landry v. Attorney Gen., 429 Mass. 336, 354 n. 20 (1999), cert. denied, 528 U.S. 1073 (2000) (upholding State convicted offender database created by G.L. c. 22E as constitutional; however, “the indefinite storage of the entire DNA sample … creates some concern that the samples could be misused at some point in the future to search for and disclose private genetic information ” [emphasis added] ). … Amato has pleaded that the defendants continue to hold this highly sensitive information beyond the scope of the limited consent he gave at the time he provided the sample…. Amato has also pleaded that the defendants’ retention of up to 200 DNA profiles constitutes a shadow DNA database, with its constituent records available for disclosure by comparison in other criminal investigations.

The allegations that the defendants have retained Amato’s highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial interference with Amato’s privacy.

Lastly, the court determined that Amato adequately stated a claim for breach of contract based upon the detective’s promise regarding disposition of the DNA sample. Citing controlling Massachusetts jurisprudence, the court held that the “detective had the authority to promise as he did.”

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